McCARTHY, J.
Michael Whalen, currently thirty nine years old, holds a G.E.D. and attended a technical community college to become a certified mason. He worked as a mason from 1980 to 1987. Thereafter he became certified as an asbestos remover and began work in that capacity for this employer in early June, 1989. On August 10, 1989 he was struck in the shins by a twenty foot aluminum ladder thrown by a coworker. He reported the incident and went home to rest. (Dec I, 2-3.)
Two decisions were rendered in this claim. The first decision (Dec. I) was issued April 14, 1993. That decision was appealed to the reviewing board which remanded the case to the hearing judge. A second decision (Dec. II) was issued August 9, 1996 and it is the appeal of that decision which is presently before us. Because Dec. II does not repeat certain background information contained in Dec. I we refer to the first decision.
Barely able to walk the next morning due to pain and swelling in his right leg he went to a hospital emergency room where x-rays of the leg were taken. The only abnormality noted was normal healing of an old (1975) fracture. He was sent home with instructions to make an appointment with an orthopedic specialist.
Because of continuing pain he twice returned to the emergency room the next week but no cause for his complaints could be found. (Dec. I, 3.) Thereafter he treated with number of doctors for his continuing pain until he eventually came under the care of Dr. Siegal in September, 1992. Suspecting some type of nerve root injury, Dr. Siegal ordered a MRI which revealed three disc herniations.
The employee received § 34 weekly temporary total incapacity benefits from August 11, 1989 to September 28, 1989 by conference order. Mr. Whalen then filed a claim for further benefits which the insurer resisted and which was denied by a later conference order. Upon appeal of the denial, a full evidentiary hearing was held on January 20, 1993. Based on the evidence presented at the hearing, the administrative judge issued a decision denying further benefits. (Dec I.) The employee appealed the decision and the reviewing board remanded the case back to the hearing judge to make further findings. The administrative judge thereafter issued another decision (Dec. II) awarding § 34 benefits from September 29, 1989 through February 26, 1993 and ordered payment of reasonable and related medical treatment. It is this second decision which is the subject of the appeal presently before us.
The insurer raises several issues, one of which has merit. In his decision the administrative judge found, based on the testimony of Dr. Siegal, that the disc herniations were causally related to his August 9, 1989 work injury. (Dec. II, 3.) The judge adopted Dr. Siegal's opinion that Mr. Whalen could lift no more than fifteen pounds intermittently, and could perform a sedentary job in a seated position with occasional standing when necessary. Walking was limited to less than five minutes at a time, and bending, crawling, squatting, reaching or climbing were not allowed. (Dep. 16-19.) The insurer argues that the finding of total temporary disability is contrary to the evidence that Mr. Whalen had done remunerative work. We agree.
In his decision, the judge states:
Given the causal connection, it follows that, due to the restrictions as testified to by Mr. Whalen, and supported by Dr. Siegal (See Tr. dep. p. 16, line 10 through p. 20, line 9), through the period of the deposition Mr. Whalen was temporarily, totally disabled from the open labor market. (Dec. II, 3).
We infer this to mean that the judge adopts Dr. Siegal's restrictions.
The employee testified that between his work injury and the hearing he had ". . . looked for employment at about thirty different places. . . ." and that he had earned seventy-five dollars a week answering the telephone at a pizza shop. (Tr. 65-66.) Mr. Whalen not only held himself out as being capable of doing some work, he in fact worked. While no evidence was presented as to how many weeks Mr. Whalen worked, it is clear that the evidence does not support a finding of total incapacity for any week he in fact worked.
G.L.c. 152, § 35D states, in pertinent part:
For the purposes of sections . . . thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be . . .:
(1) The actual earnings of the employee during each week. . . .
The award of total compensation is reversed. The parties should be able to adjust the amount of Mr. Whalen's incapacity benefits for all weeks in which he actually worked. If they cannot reach an agreement, the employee may seek the services of the division of dispute resolution by filing a claim for further compensation with wage records for all periods of employment during the periods of claimed incapacity. See G.L.c. 152, § 11D(1).
___________________________ William A. McCarthy Administrative Law Judge
___________________________ Susan Maze-Rothstein Administrative Law Judge
___________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: June 2, 1997